Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Wednesday, July 20, 2005

I am currently at the Hoover Institution, Stanford University (photo of Ken and Renee in front of the Hoover buildings), working on a short book manuscript tentatively titled "United Nations reform and the Limits of Global Governance," to be published by Rowman and Littlefield/Hoover Institution next year. The book is really a sort of extended essay between hard covers on the conceptual contradictions involved in serious UN reform and arguing, in effect, that UN reform at the level of the trees depends on how one sees the forest, which is really the forest of global governance. Your vision of global governance will powerfully influence how you see UN reform. So it is tying together a sort of grand conceptual discussion of global governance with a certain amount of nitty-gritty work on the details of UN reform as is now under discussion at the UN.

I've tentatively set out a number of contradictions in UN reform, centered around the question of sovereignty-democratic sovereignty-liberal internationalism divides as the heart of debates over global governance. I've tentatively divided these into two broad categories - good guys versus bad guys, and good guys versus good guys. What I mean by that division is that there are certain unavoidable controversies that arise in an organization that accepts good guys and bad guys at the same table - the Human Rights Commission is one such, but there are others, all fundamentally arising from the fact that an organization that accepts the good and the bad always has deep moral limitations. On the other hand, there are also certain unavoidable controversies that arise from the differences in vision even between the good guys - competing visions of global governance. UN reform has to begin from the understanding that some of these controversies are intractable - some of them good guy versus bad guy controversies and some of them good guy versus good guy controversies - and cannot be made to go away by artful and diplomatic forms of words. These intractable differences must be accepted as a matter of differences of power and values, realism and idealism, and therefore represent irreducible limits upon the scope, power, prestige, legitimacy, possibilities of action, and aspirations of the UN family of organizations. UN reform is partly about understanding possibilities of reform, but mostly about understanding reform as the acknowledgment of limits.

***Well, that said, the fact is that Stanford is the loveliest place on earth - paradise, with perfect weather, warm and low humidity. To think that a few days ago my family and I were in the decidedly unparadisical weather of DC. The folks at the Hoover Institution are fabulous - it has many interesting people around, but also the ability to lock oneself away with a laptop, or go sit outside in the wonderful weather with a laptop. It's a great place to get around on a bike. It's the kind of place where either you get no work done whatsoever - or else you win the Nobel prize. And people are so ... so civilized here. (I say this as a Californian, but UCLA graduate.) But Stanford feels like everything Adam Ferguson and Adam Smith called for in civil society - a polite and polished commercial people. Best of what David Brooks called the bobos, the bohemian bourgeoisie.

Friday, July 15, 2005

I realize I put in too much Mark Steyn here, and I confess that it annoys the hell out of me when it turns out that he - nonlawyer, indeed, never went to college - puts the leading problem of foreign law in US constitutional law better than I do:

***A few months later, Sandra Day O'Connor profiled the way ahead for America's constitutional court - EU precedents! I wrote about her strange view of her role in National Review in November 2003:

Did you see what Sandra Day O'Connor said the other day? Swingin' Sandra is the fifth vote on all the 5-4 decisions setting the course for this great Republic, the one the lawyers pitch their arguments to, which isn't as easy as it sounds, given the lack of discernible legal principles governing her erratic pendulum. Clarence Thomas has a sign on the wall of his office: "Please do not emanate into the penumbra." But over at Sandra's pad it's all penumbra: The trick for counsel is figuring, in this constitutional twilight zone, which particular degree of gray tickles her fancy on any given day.

Even so, it comes as a shock to discover that Sandra's now swingin' not between left and right but between the U.S. Constitution and Belgian law. As she told her audience in Atlanta: "Over time we will rely increasingly -- or take notice, at least, increasingly -- on international and foreign courts in examining domestic issues." Doing so "may not only enrich our own country's decisions, I think it may create that all-important good impression."

Until recently, U.S. courts declined to consider foreign courts [this is not quite so - KA]. But, as Justice O'Connor was happy to report, that's all changed: In "the famous or perhaps infamous case" on Texas sodomy she and her colleagues relied on a series of decisions by European courts.

Wow. That penumbra stretches a lot farther than it used to. Speaking as a foreigner myself, I've always found it one of the more charming features of the American scene that "progressives" are obliged to find justification for their radicalism in a piece of old parchment. In Europe, they can simply say: We need to get with the beat, daddy-o. But in the U.S. the Left at least observes the niceties and pretends that the powdered-wig guys had somehow ingeniously anticipated the need for a constitutional right to gay marriage or a partial-birth abortion. Perhaps recognizing that this particular penumbra is pretty well tapped out, Justice O'Connor is now saying that there's gold in them thar Scandinavian hills.

No prizes for predicting which way the emanations are going to go once they take the foreigners into account. In considering the pros and cons of sodomy in Texas, the Supreme Court did not rely on the large body of Nigerian sharia precedents and Taliban jurisprudence in this area. No, the only countries the Supremes seem to have taken under consideration are those in (as Justice Breyer suggested) the Western tradition -- i.e., white Europeans.

Given that this is the court that elevated "Celebrate Diversity" from a bumper sticker to a bedrock constitutional principle, it's a little bewildering to find that they cheerfully accord the white European a unique monopoly on the judicial consultancy positions. Heartening though it is to know the white man still has his uses, this privileged access is, alas, unwarranted. For one thing, the fact that the U.S. Constitution is older than the French, German, Italian, Greek, and Spanish constitutions combined suggests that this member of "the Western tradition" is more traditional than others. For another, can you imagine any judge in France, Denmark, or New Zealand taking U.S. court decisions into account when deliberating on, say, gun ownership or capital punishment?

Let me come at it this way. I love borders, the more the merrier -- town lines, county, state, and, of course, national. Borders symbolize one of the few remaining constraints on government: You don't like the grade school here in town? Move ten miles up the road. You don't want to pay Vermont sales tax? Drive over the river and shop in New Hampshire. Arianna Huffington huffs against "tax loopholes for fat cats," but I'd say the ability to rent a post-office box in Bermuda or the Cayman Islands is a "loophole" in one of the original 16th-century senses -- an aperture to let in light and fresh air. The fact that there's somewhere else to go to is the ultimate limitation on government. Borders give people choices -- and, to put it in a bumper sticker, "I'm Pro-Choice and I Vote with My Feet." When starry-eyed utopians speak of a "world without borders," you can pretty much guess what kind of a place the one-world one-party state would be, with tax rates starting at more than 50 percent, where they are in Sweden right now.

That's why Justice O'Connor's indifference to jurisdictional integrity and partiality to foreigners is not just a kinky fetish but something philosophically incompatible with the job she's meant to be doing. If you wanted to construct the precise opposite of the U.S. Constitution, it would look an awful lot like "international law." The former is a document that limits the state's grip on the people, the latter is designed to ensure they can never wiggle free, no matter where they go. "International law" is the new colonialism, the imposition on the world's peoples of the moral certainties of a remote, unaccountable Western elite -- indeed, one far less tolerant of local customs and culture than the old-school imperialists. The Europeans haven't had much luck imposing their laws on Saudi Arabia and Sudan but, thanks to Justice O'Connor, other backward jurisdictions like Texas and Alabama are about to be whipped into line.***

Wednesday, July 13, 2005

There's nothing I really have to add to everything that has been said about the massacre ten years ago. I spent a fair amount of time in Yugoslavia for Human Rights Watch during the late 1980s and early 90s, in all parts of what was then still one country, from Slovenia to Kosovo. I was present at a number of Milosevic rallies in Serbia, and travelled with Jeri Laber, the head of Helsinki Watch, to some demonstrations that turned out, seen in retrospect, to have been the beginning of the Croatian phase of the war. We were present at police stations and armories looted of their weapons that started getting real use not long after; we drove late one night through the Croatian countryside, finding trees downed across the roads. I spent many, many hours with nationalists in Croatia and Slovenia and Kosovo urging breakup and many, many hours with the polished, travelled, cosmopolitan Yugoslav intellectual elites that feared breakup more than anything else.

I must have been young and very naive - I never really believed, until the fighting started in earnest, that all this would lead to open war, and then massacre, ethnic cleansing, Srebrenica, and the rest. I heard the warnings, but it all seemed unreal to me. Yugoslavia seemed far too civilized. I don't just mean its intellectuals and elites - I spent much time talking to peasants and farmers from all over the country, and they no more seemed likely to get into a fratricidal, genocidal war than northern and southern California.

The Serbs before the fighting started and even once it was going? When I saw the crowds at the Milosevic rallies in Belgrade, they struck me not so much as inflamed as sullen. And the sullenness I took, I now see, as essentially passive. But it wasn't. It was sullennness that blossomed into a very active resentment, that expressed itself in violence of an extraordinarily deliberate kind - not the explosion of mad political passion, but instead a cold blooded, cold hearted decision about what was "necessary." There was that strongly "logical," "necessary" sense on the Croatian side in the early part of the war, too, that created the conditions for their own acts of ethnic cleansing, yes. But on the Serb side the resentment seemed much more a force. It reminds me, today, of the attitude of one of those racist Italian football hooligan groups (someone wrote a book about them), who sing their theme song, "no one likes us, we don't care." Which is essentially resentment and sullenness, but passive - until you give them a bunch of automatic weapons.

The late Christopher Lasch wrote, in his last long book, The True and Only Heaven, in favor of a certain form of populism. He praised it for representing the relatively good sense of the common man against elites that would remake and remake and remake him according to their passing, authoritarian and often totalitarian fancies. He was, however, well aware of what populism, in the hands of demogogues, can lead to. So he spent a good deal of time in that book arguing for what he called the "spiritual disciplines against resentment." The resentment he had in mind was, I believe, very close to the resentment that I sensed so strongly among the Serbs who backed Milosevic. There were no disciplines, spiritual or otherwise, to defang, temper, and denature that resentment in Serbia. It is the same resentment, too, that seems to animate Muslim extremists today.

Monday, July 11, 2005

Mark Steyn argues in the New York Sun, here, that Europe stands at risk of gradually becoming the new Israel with respect to the Muslim world:

***I mean by Israelification: the jihadists understand that Europe is up for grabs in a way that America isn’t. Israel/Palestine is,in the old joke, the twice promised land — a western democracy and a disaffected Muslim population exist in (for the most part) two solitudes but claim the same piece of real estate. As it happens, that’s also how more and more Muslims see Europe.

And as their numbers grow it seems likely that wily Islamic leaders in the Middle East will embrace the cause of the rights of European Muslims in the same way that they claim solidarity with the Palestinians. When France began contemplating its headscarf ban in schools, it dispatched government ministers to seek the advice of Egyptian imams, implicitly accepting the view of Islamic scholars that the Fifth Republic is now an outlying province of the dar al-Islam. As the Zionist Entity can testify, that’s not a club you necessarily want to be signed up for.

Few European leaders have a clue what to do about this, but, as that French headscarf law and Britain’s Incitement to Racial Hatred bill and Dutch responses to the murder of Theo van Gogh all underline, mediation between what Tony Blair called on Thursday “our way of life” and Muslim values has already become a central dynamic of European political culture — a remarkable achievement for a minority few Europeans were more than vaguely conscious of pre-9/11. Meanwhile, across the borders pour not primarily suicide bombers or suitcase nukes, though they will come in the end, but ideology — fierce, glamorous and implacable. That’s the final irony of the Israelification of Europe: distressing as it may be to Continental anti-Semites, in this scenario they’re the Jews.***

(Sorry about the duplicated photos! I was trying to get a smaller size - I'll work on deleting the big one.)

Anthony Dworkin, a good friend and the superb editor of the Crimes of War website, has posted a comment to the previous post on whether the response to terror should properly be conceptualized as war or as law enforcement. It's an outstanding, thoughtful comment, which I am reposting as a separate post here (I will respond to Anthony and add some additional material here, and if you haven't visited Crimes of War, you should):

***I read this post with interest since I'm writing on this subject myself just now for the Crimes of War website (www.crimesofwar.org).

I agree entirely that the threat to the US from al-Qaeda as displayed on 9/11 was too great to be met with the conventional tools of law enforcement alone. But equally I can't accept the idea that there could in any meaningful (i.e. non-rhetorical) sense be a "war" between the US and al-Qaeda since war has always been understood as a formal relationship between two equal parties with corresponding rights and responsibilities.Is there a middle way between these two extremes? It might help a little to break down the claims that proponents of the "war" view use to back their case.

Here there is a curious aspect of Ken Anderson's argument: all the strategic advantages he ascribes to the war view have been endorsed and vigorously pursued by the British government which has at the same time resolutely refused every opportunity to say it is at war with al-Qaeda (let alone terrorism more broadly).

1) A forward strategy: the UK government has passed legislation to put control orders on suspected terrorists without accusing them of any crime. To do this it derogated from Article 5 of the European Convention on Human Rights on the grounds that the UK faced a "public emergency" from terrorism.

2) An anticipatory strategy: no one has been more consistent that Tony Blair in talking of the importance of preventing weapons of mass destruction falling into terrorist hands, and of course he backed the war against Iraq for precisely this reason.

3) The denial of safe haven to terrorists -- well, Britain was a full backer and supporter of the attack on Afganistan -- again for precisely this reason.All these strategic tools are not at all dependent on any notion that there is a "war" with terrorists -- only that the nature of the terrorist threat is "real and existential" (Blair's words).

There is another argument for the importance of the war paradigm that is sometimes made: that it allows you to treat someone as an enemy simply because of his affiliation with an enemy group, not based on any individual guilt. This is of course meaningful in a conventional war with a regular army but is close to meaningless in the case of global terrorism -- as Judge Green's example of the little old lady in DC District Court showed. A membership criterion that is precise enough to avoid such obviously unacceptable outcomes would probably collapse down to the kind of evidence that could be needed to obtain control orders or similar measures on an individual basis.

Against this, what are the dangers of the war paradigm? Principally, as implied above, that it supposes a situation where the enemy threat is clearly bounded in time and represented by a clearly defined group of people. The dangers of allowing the government to detain indefinitely (or in theory shoot to kill) individuals who in most cases dispute the grounds on which they're being held is simply not acceptable in a society that regards itself as ruled by law.

Finally, I'm not sure I see the force of Ken's argument about terrorists challenging the legitimacy of the society. After all the same would be true of an anarchist political agitator. The argument must also assume that they are in a position to threaten the security of the society whose legitimacy they reject. It is true and important I think that al-Qaeda marks the emergence of terrorism that can pose a threat to national security in line with the threat posed by other states in war. That is why I agree that states harbouring the terrorists or supplying them would be legitimate targets for wars of self-defence. But I can't see why the threat can't be adequately handled by a combination of contained wars against countries that support terrorism and (where absolutely necessary) public emergency measures at home that are nevertheless still in line with the domestic rule of law.***

Sunday, July 10, 2005

London 7/7 has again raised the question of whether acting against global terror is best conceptualized, and best conducted, as war or instead as law enforcement.

My own view has long been - since I first wrote about this in the Times Literary Supplement [pdf courtesy of Bard College of that article here, What Kind of War Is It?: Language, law and terror: Policemen or soldiers: the dangers of misunderstanding the threat to America, TLS, No. 5138, September 21, 2001] following 9/11 - is that it is a matter of war in the first place. But it is indeed a different kind of war - a war involving intelligence assets more than most. Law enforcement is not irrelevant, of course, but it is essentially tactical, not the way strategically to conceive the situation; it was, to be sure, how we did conceive the situation throughout the Clinton years and right up until 9/11, and look what that got us.

But this has been hotly contested, of course, since 9/11, and the London attacks put the debate front and center again.

Consider two diametrically opposed articles on this question, each of them intelligently written by intelligent commentators. The first, by Andrew McCarthy, appeared in NRO, here (thanks, Julian Ku at Opinio Juris; see his commentary on it here). It is the "war" view, straightforwardly so. The second is by the eminent British commentator Timothy Garton Ash, in the Los Angeles Times, here, arguing that it is law enforcement, and that British police were correct to describe the sites as crime scenes.

Of course, treating the sites as crime scenes, to be investigated as crime scenes, need not be inconsistent with a strategy of war, a war of intelligence, and using powers and forces not available to law enforcment, either domestically or abroad. What makes it war is the willingness not to be limited solely to the powers of investigation and action that limit police powers. Timothy Garton Ash - unlike so many American liberals - acknowledges plainly that one cannot have one's cake and eat it, too, and that civil liberties and the ability to gather the intelligence necessary both to prevent and defeat terrorist groups present a classic tradeoff of social goods.

I disagree with many of the places where he draws the line. Garton Ash draws the tradeoff by essentially treating the terrorists as people who must be pursued as though they were ordinary domestic criminals, with all the many rights that the United States guarantees even to criminal deviants. That seems to me fundamentally wrong. There is a distinction to be drawn even between ordinary criminals and those who are criminally at war with a free society - those who have made themselves simultaneously criminals and enemies, enemies at war with free society and yet who further conduct themselves criminally in pursuit of that war. We owe something to criminal deviants within out domestic society that we do not owe to terrorists, and it is that something that marks the limit of what domestic policework and domestic criminal prosecution and process can offer.

What does the "war" view strategically offer?

(1) A forward strategy, one which takes the offensive to the enemy, rather than always being reactive and waiting for the strike, then looking backwards in the manner of a 90s style Clinton-era criminal investigation of terror. As one US military blogger remarked, in the matter of war, away games are always better than home games. A criminal law strategy rules out any anticipatory, forward, or offensive strategy out almost by definition; criminal law enforcement in a settled, legitimate, free society is after the fact, not before the fact - and with ordinary criminals, that's how it should be, but terrorists, alas, are not ordinary criminals.

(2) An anticipatory strategy that looks not only to existing forms of terrorist attacks, but looks ahead to what would be far, far, far worse - the combination of terrorist-rogue state-weapons of mass destruction. One may argue over the Iraq war, or see it as a disaster as Garton Ash does, but its aim at preventing what might well have been, under Saddam or his even crazier sons, the fatal combination, was and is not irrational. Again, the criminal law approach, as strategy, cannot even conceive of something so forward looking - conceptually, it looks for the bad guys after the dirty bomb has gone off.

(3) The denial of safe haven to terrorists. The Clinton administration once in a while was willing to use military force against terrorists - in ways that convinced the terrorists, to be sure, that the US was unwilling to act against them and increased their confidence levels immensely. But it was willing to aim the occasional cruise missile at Al Qaeda training camps, at least when likely to be empty. What characterizes the Bush military strategy is not the willingness to use military force against terrorists, but the strategically far more important and far more radical willingness to use military force against regimes that harbor terrorists, to deny them safe haven (and in this, following on Richard Clarke's notable memo while still in government, I include Iraq, as the place to which, according to Clarke, Osama would finally flee).

Put another way, terrorism is typically (though not entirely) a logistical raiding strategy that targets civilian morale as a logistical necessity in democratic warfighting. As with all logistical raiders - of which guerrilla warfare is a prime example - their ability to fight longterm is enhanced enormously by the ability to retreat to safe bases, bases which cannot be counter-attacked for reasons of technology, geography, or politics. Defeating guerrillas or terrorists usually involves denial of safe havens, and in that regard this war is no different from others. It is the placement of this often politically awkward fact in the front line of policy that the Bush administration has made its stand. Criminal law enforcement cannot begin to contemplate this - conceptually, it has no place in criminal law.

These three are examples of the strategic thinking about the war on terrorism as a war that cannot be conceived within the paradigm of law enforcement. There are others - the fundamental political bet occasioned by the Iraq war, for example, that democracy can be a tool, a wedge, against terror.

And yet this is no besmirchment of the virtues of law enforcement. Law enforcement is about the use of force in a settled, legitimately ordered society, dealing with social deviancy within a society whose fundamental legitimacy is not at issue. Ordinary domestic criminals are deviants from that fundamentally legitimate society and its norms; they do not challenge that fundamental legitimacy even when they act criminally. Terrorists are different; they are a challenge to that legitimacy itself. Challenges to the fundamental legitimacy of a society cannot really be understood or conceived by law enforcement, which presumes that legitimacy precisely in order to be able to restrict and curtail the violence which it is legally entitled to use to maintain public order and peace. Garton Ash says many important things about the virtues of law enforcement, but - wrongly believing that the transnational religious terrorism of Al Qaeda can be modelled on the geographically local terrorism of the IRA - ignores these fundamentals.

(A good place to look for academic discussion of these distinctions is the Journal of Terrorism and Political Violence, edited by my old professor and mentor David Rapoport, and on whose editorial board I've been for a long time.)

All that said, the war on terror is a different kind of war. I recommend highly the short essay by the ever remarkable University of Texas professor Philip Bobbitt in today's Sunday New York Times Week in Review section (behind a registration wall). As he says - writing from London where he was living on 7/7 - this is a war whose strategic concepts shade quickly into political grand strategy, and in which intelligence plays a vital role. Obtaining that intelligence from a local population that has radical terrorists in its midst does require that intelligence officers and police officials have legitimacy with that population, and that requires a belief that the society itself is fundamentally legitimate and that its procedures for dealing with its citizens are fundamentally fair and just - in that Garton Ash is not wrong and is right to demand it.

I also recommend Julian Ku's comments on how the war on terror itself has to adjust to the requirements of intelligence, here.

Saturday, July 09, 2005

Thoughts and prayers with the victims of the 7/7 attack. My brother and his wife, who live in Central London and use the Russell Square station frequently, as well as my close friend John R and his family, were all okay.

Monday, July 04, 2005

Mark Steyn's July 4, 2002 column, here. (We hosted a bbq for folks on our little DC cul-de-sac; I overcooked the burgers, as usual, visions of e coli dancing in my head, but otherwise things went fine. Also read over the Declaration of Independence with my daughter - the phrase that kept coming back to me, in relation to Steyn's column, is "consent of the governed.")

Julian Ku (photo at left) has a lovely July 4th note at Opinio Juris here - he is concerned about coming off all geeky on a holiday made for pool or beach. Okay, let me join the geeks (my wife and daughter would say no need to join, been there all along). In addition to Eugene Kontorovich's erudite exposition on how the phrase, "decent respect to the opinions of mankind" has morphed into such a meme for liberal internationalism, I expressed my own view of it in part of an article in Policy Review, here, that was actually about foreign law in US constitutional adjudication:

"Jefferson was referring ... not to justification of the practices of a settled constitutional order of several centuries, but instead to a society that was about to undertake revolution, rebellion, sedition, treason, confiscation, secession, and war against its lawful sovereign. The moment indeed warranted an explanation for why all that was justified, in terms that the rest of mankind might understand. Nine generations later, Justice Breyer might more accurately have said that consideration of the opinions of mankind was appropriate at, not from, the moment of the nation’s birth."

Beyond that, the idea of the founding fathers as liberal internationalists must take account of the ever more profound differences in the scope and, really, imperial pretensions of international law - its profound intent to reach ever more deeply into the affairs not merely of states, but of individuals - the very term international law, or law of nations, or any such term, cannot be taken out of the context in which its limitations or expansions are understood. The term did not mean to them what, for liberal internationalists, it means today. To say that the founding fathers were comfortable with the idea of international law is not to say very much with respect to international law today, because it is doubtful indeed that they would recognize what it purports today to mean in the hands of liberal internationalists - or, as the Declaration of Independence would have it, they would not recognize in the imperial claims of liberal internationalism's version of international law "the consent of the governed."

Without much doubt, however, confronted with that vision of unconsented international law, they would recognize Europe, the Europe left behind.

Sunday, July 03, 2005

I've finally had a chance to read the DC Circuit's opinion on the ATS case concerning WWII "comfort women." I agree with Julian Ku' comments on it, at Opinio Juris, here. Excerpt:

***"In an important decision on treaty interpretation and the political question doctrine, the D.C. Circuit yesterday affirmed the dismissal of a lawsuit brought by a number of Korean, Taiwanese, and Filipino women who alleged rape, torture, and other abuse at the hands of Japanese soldiers during World War II. The lawsuit was brought under the Alien Tort Statute and had been originally dismissed by the district court on sovereign immunity grounds. The Supreme Court remanded, however, for reconsideration and the D.C. Circuit has a new reason for dismissal: "the case presents a nonjusticiable political question: namely, whether thegovernments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they signed with Japan."

"As I've noted earlier, Japan is still facing serious fallout in Asia from its WWII behavior, especially in S. Korea and China. And my own belief is that Japan is still responsible in some way for the serious crimes their army committed in the WWII. But, as a legal matter, both Korea and China (and Taiwan and the Philippines) may have waived any claims by their nationals via peace treaties with Japan.

"What is interesting here is that the D.C. Circuit refused to resolve whether or not the claims have in fact been waived by the treaties. Instead, it has invoked the always murky "political question" doctrine to dismiss the case on the theory that interpretation of the treaties here would interfere with the executive's conduct of foreign affairs. Usually, the question of treaty interpretation is a matter of deference to the executive branch's interpretation, at most, but here the D.C. Circuit went farther. It noted that if it adopted an interpretation of a treaty between two other countries like a treaty between Japan and Korea, it might unduly upset foreign relations with one or both of those countries."***

A former student of Martti Koskenniemi's has posted a comment that notes that the very great theoretical work of international law, From Apology to Utopia, is to be reissued in December 2005. I wasn't aware that it was difficult to find for purchase, as I've had the same copy since it first appeared. But for those coming to the field in recent years, this is good news.

I should also add, re the comment, I'm not sure that "sociologist" is the the best way to describe the iconoclastic Koskenniemi, either. I chose it not so much in the technical sense of sociologist, but to emphasize that Koskenniemi is studying the profession itself, as something that professes, and not merely examining the intellectual contents that it produces. Social theorist of international law might be a better way to put it - but clearly, Koskenniemi is doing something more than international law as such, more than an intellectual history of international law as such - the third layer in his work, the most important, connects to the actors qua actors, and not simply to their intellectual products.

My thanks for that comment - it caused me to think more deeply about how to catergorize Koskenniemi's work:

***"I agree with many of your comments on Martti Koskenniemi, a brilliant theorist and intellectual historian (and my dissertation advisor) who somehow balances the practical commitments of an international lawyer with meta-theory. I would quibble with your assessment of him as a "sociologist" however, since he seems to struggle to put vocational concerns front and center.

You will be happy to hear that last I checked Apology/Utopia, which has been notoriously difficult to find, is set to be reissued in Dec. 2005."***

The ever astute, often contrarian David Rieff - friend and co-author - has an important essay, Dangerous Pity, in Prospect magazine, July 2005, pointing out the unintended horrors created by Live Aid 1985. Here. Excerpts:

***"[Subtitle:] The millions donated to Ethiopia in 1985 thanks to Live Aid were supposed to go towards relieving a natural disaster. In reality, donors became participants in a civil war. Many lives were saved, but even more may have been lost in Live Aid's unwitting support of a Stalinist-style resettlement project."

"Isn't it better to do something rather than give in to despair or cynicism and do nothing? This is the reproachful question familiar to anyone who has criticised organisations that view themselves as dedicated to doing good in the world. To those UN agencies, relief organisations and development groups working in crisis zones from Afghanistan to Aceh, any "non-constructive" criticism, especially the kind that implies that it might have been better for the would-be Samaritans to refrain from acting at all, is so much nihilist piffle. Edmund Burke's dictum that for evil to triumph all that is required is "for good men to do nothing" (a favourite quotation of Kofi Annan's) encapsulates this view. The standard argument is that to do nothing is to acquiesce in whatever horror is unfolding, from Saddam Hussein's Iraq to the mass killings in present-day Darfur. Whether it derives from the missionary impulse, so ingrained in western culture, or the purported lesson of the Holocaust—"never again"—this view of what the American legal philosopher John Rawls called "the duty of assistance" has become virtually unassailable. Yet an alternative case can be made: in the global altruism business it is, indeed, sometimes better not to do anything at all.

"Of course, those who believe it is always better to do something tend to believe that the negative consequences of their action arise from not doing enough. The most frequently heard complaint of activists is that western countries, both on a government and a popular level, remain too indifferent to the crises of hunger and debt that make life hell for several billion people. For most activists, the appropriate question does not concern the value of action, but rather how to mobilise people and focus pressure on the governments of rich countries so that more gets done. For over 30 years—as long as humanitarian action has been a principal response in the west to the crises of the poor world—a favourite metaphor has been to "wake people up" to what was really going on. Thus, in the Guardian in July 2004, the paper's media correspondent, Matt Wells, could write that the reporting of the BBC's Michael Buerk in 1984 had "woken the world to the famine in Ethiopia." The particular nature of the "wake-up call" in question was that Buerk's reporting got picked up by hundreds of media outlets the world over and is generally agreed to have inspired the Irish pop singer Bob Geldof to launch his Band Aid and Live Aid charity projects on behalf of famine-stricken Ethiopians. (Band Aid was the name of the group set up by Geldof and Midge Ure in 1984 to perform the single "Do They Know It's Christmas?" which raised around £8m. The Band Aid trust then organised the Live Aid concerts in July 1985—held at Wembley stadium in London, the JFK stadium in the US and and several other international venues. The total sum raised is said to be between £50m and £70m.)

"Activists who bemoan what they see as the selfishness and self-absorption of life in the rich world often point to Live Aid as a sign of how compassion fatigue can be beaten. In the words of one aid worker: "Humanitarian concern is now at the centre of foreign policy. We may not have an ethical foreign policy, but no political leader can fail to respond to the humanitarian constituency. Bob Geldof deserves a lot of credit for that."

"This is certainly Geldof's own view. He believes that the Live Aid "experience" was a profound social innovation that helped to shape the views of those western politicians who have shown real interest in addressing the crisis of development, above all in sub-Saharan Africa. As he put it late last year: "We have a Live Aid prime minister who sat in and watched it on TV all day. Tony Blair and Gordon Brown are served notice that Britain, through its greatest artists, wants the situation [poverty and famine in Africa] changed."

"That said, Geldof, to his credit, has bridled at all the "Saint Bob" talk that has surrounded him since Live Aid days, and has often insisted that it was a disgrace that he had to carry the torch for Africa. But Geldof was, and still is, more than just a campaigner. His view of what Live Aid accomplished—and his critique of what has happened in Africa since the 1980s—is so mainstream that Geldof was not only made a member of Blair's Africa Commission (along with the current Ethiopian prime minister, Meles Zenawi, and 15 others), but even sat next to Blair when the commission's report was launched on 11th March.

"For many relief professionals who work in the field, media coverage and the involvement of celebrities has always been crucial. This is hardly the way the relief establishment would wish things to be, but it is the seemingly unalterable reality of contemporary celebrity culture to which they have largely reconciled themselves. "Ethiopia would not have got the attention it did without Live Aid," Joanna Macrae, the former co-ordinator of the humanitarian policy group at the Overseas Development Institute, acknowledges. Macrae, however, has grave reservations about what she has dubbed "quick, loud responses." Such notes of scepticism are in short supply. Bob Geldof might say on television at the time, "just give us your fucking money," and justify the demand with his oft-stated line that "Live Aid was about people losing their lives." But every seasoned aid worker knew at the time, as they know now on the eve of Live 8, Geldof's long-awaited successor to Live Aid, that there is no necessary connection between raising a lot of money for a good cause and spending that money well, just as there is no necessary connection between caring about the suffering of others and understanding the nature and cause of that suffering.

"And yet, as the excitement about the latest Live 8 concert in support of debt relief for Africa has shown, Live Aid became the prototype for a new style of celebrity activism—from Richard Gere campaigning for Tibet to the proliferation of benefit concerts for the Asian tsunami. Live Aid also pioneered the idea of the pop star as interlocutor with government officials. In the wake of the 1985 concert, Geldof went to see Margaret Thatcher and, by his account, it was he who did the lecturing about what was to be done in Ethiopia. Anomalous in the 1980s, such meetings are now routine.

"But did the mobilisation of public opinion through celebrity endorsement really play the positive role with which it is now credited? To ask this question is emphatically not to turn hagiography on its head and to demonise either Geldof or Live Aid. There is no smoking-gun evidence demonstrating that Live Aid achieved nothing, or only did harm. But there is ample reason to conclude that Live Aid did harm as well as good. It is also arguable that Live Aid may have done more harm than good."

(Update, July 5, 2005: Actually, the most blistering and the best is Mark Steyn, here, from the Daily Telegraph.)

Not everyone is entranced by Live 8. I have mixed views, although they lean heavily towards the critique by Niall Ferguson (photo at left) that appears below. However, here is one of the most trenchant and blistering, by Simon Jenkins in the Sunday Times of London, Sunday, July 3, 2005. Excerpts:

***"Live 8 is clearly an echo of Live Aid, Geldof’s money-raising spectacular for Ethiopian famine in 1985. Live Aid was a spontaneous response to what television presented as a crisis. Its outcome has been hotly debated, most recently by David Rieff in this month’s Prospect magazine. Showering money, trucks and food on Mengistu’s Ethiopia entrenched a vicious regime and aided one of the most cruel forced migrations in history. Ethiopia was never short of food.

"Live 8 seems to acknowledge this critique. The £20m it raises will go not on poverty but on itself. Not a penny will go to Africa. Indeed a potential fundraising opportunity, which might at least have bought a planeload of anti-Aids drugs, has become an exhibition of high-tech media co-ordination and a celebrity fiesta. Geldof has given up on money. He rephrases Lennon’s “All you need is love” as “All you need is awareness”.

"All this asks to be taken seriously as politics. So let’s do so — and as more than background schmooze for Blair’s G8 spectacular at Gleneagles. The G8 is not a decision-making body but a “conversation” between rich nations. It has no constitution and no executive. The United Nations, not the G8, is the proper forum for collective action onworld poverty.

"Targeting the G8 is in truth a hangover from 1960s left-wing agitprop, which held that the evils of the world were due to capitalism and colonial exploitation. Conventional wisdom was to dump the West’s surplus savings and produce on Africa, and then to wail when the continent was predictably corrupted. At a rough estimate some $500 billion was tipped into Africa over the past 40 years. Most observers maintain this contributed to political instability and a negative growth rate.

"Geldof disagrees. He is a big-time interventionist. He claims legitimacy not by democratic mandate but by the dubious franchise of rock concert attendances. He tells his audiences that they do not need to give money or think. They can feel better just by chanting a mantra like monks. Awareness is self-defining. It accepts no responsibility for any political outcomes. Blame is transferred to elected politicians.

"Buried behind these antics are two strongly contrasting arguments. Live 8’s demand is apparently that governments should up the Sixties game and assume the mantle of global welfare. Voluntary giving to charity should become compulsory. The humanitarian urge should be nationalised. In addition, outcomes do not matter. Geldof is quoted in the International Herald Tribune as claiming that something must be done “even if it doesn’t work”. For him, doing something useless even if harmful is a moral advance on doing nothing.

"On this argument it does not matter if the West merely gives money to power. Too bad if it distorts markets, inflates currencies and depletes incentives. Too bad if, as an IMF report suggested last week, aid does not lead to higher growth in most of Africa and possibly the reverse. In Ethiopia Geldof appeared to agree. Aid must somehow trickle down from power to poor. Hence the continued demand to “double aid”. It is like the Pentagon strategy for bombing Iraq. Some of it must hit a target.

"The second argument responds to this implied criticism by demanding that aid be “smart”. It should be conditional on countries engaging in political and economic reform, as according to George Bush. Aid should go only to those who mean to help themselves. Africa should be a continent on workfare. There should be no subsidies to corruption. Aid is a tool of the global democratic crusade.

"Thus one speaker last week demanded that debt relief — aid by another name — should depend upon monitored elections, anti-corruption courts and “green” audits. All this would need the revival of Africa’s old ruling class, the unemployed offspring of Europe’s rich. The Lugard tradition of Britain’s indirect imperialism returns as expatriate NGOs in white 4x4s.

"I go along with neither argument. Yet my response is unlikely to be heard amid the din. If $500 billion has done Africa more harm than good, how can doubling it possibly do more good than harm? We know that aid induces dependency. The idea of aiding only those governments of whose policies we approve is what happens when charity is nationalised. It denies the humanitarian imperative, which by its nature is ad hoc and personal.

"Helping only those that help themselves is a contradiction in terms. A child dying on television may be distressing, but children are dying “off television” the world over. Western peace of mind may be a worthy goal of policy, but it cannot justify a new age of imperialism in Africa."

***(Update, Sunday, July 3, 2005: See also this excellent critique by Niall Ferguson, in the Sunday, July 3, 2005 Daily Telegraph, here. Note his comments on Sachs and on the naivete of the Live 8 enthusiasts:

"It may come as a surprise to Live 8 fans, but the top three reasons why most African countries are economic basket cases are not lack of aid, excessive debt service payments and protectionism by developed countries. They are in fact chronic misgovernment, recurrent civil war and the high incidence of diseases such as malaria and Aids. It is just possible that more aid, debt relief and freer trade could mitigate these problems. But experience is not encouraging.Between 1975 and 1984, real net aid from the Organisation of Economic Cooperation and Development to Sub-Saharan African countries grew at a rate of nearly 8 per cent, two and a half times faster than in the past 10 years. Yet African growth was 2 per cent a year, compared with more than 3 per cent since 1995. With the exception of the compulsively optimistic Jeff Sachs - Bono's new best friend - most economists today acknowledge that higher growth in Africa will only come when there is real political reform in countries such as Zimbabwe, and real peace in countries such as the Congo.

"Will Live 8 put pressure on Robert Mugabe to step down? Will it put pressure on Congo's warring factions to lay down their arms? Hm, that's funny; those demands don't seem to have made it into Sir Bob's manifesto. And it's easy to see why not. It's so much more satisfying for the Jellybys to make believe that Africa's woes are the responsibility of those "eight (white, terminally uncool) men" who lead the G8 countries.

"So yesterday's feel-good / do-good extravaganza was fundamentally misconceived. But it was also - and hence my allusion to Dickens - deeply anachronistic. A century ago, it made some sense for Victorian Britons to believe that they could help Africa. Britain in those days was the workshop of the world - the first industrial nation, but also the first financial nation.

"Britain was in a position to do more than dispense aid to Africa. British warships stamped out the Atlantic slave trade. British capital built the railways and ports that encouraged more benign kinds of trade, not to mention the mines that remain central to South Africa's relative prosperity. British missionaries built an impressive network of schools."***

Friday, July 01, 2005

One lurking question in the Supreme Court appointment fight is where any of the possible candidates stand on the question of foreign (and unratified international) law in US constitutional adjudication. As numerous previous posts on this blog have argued, it is an absolutely essential question of judicial philosophy, and one in which the President has a chance to change the Court's direction, given that Justice O'Connor has been a strong proponent of the trend. Yet I have read nothing that gives any indication of where possible nominees stand on this vital matter.

Charles Krauthammer has an intriguing essay in this month's Commentary, titled "The Neoconservative Convergence," here.

Krauthammer argues that during the Bush I, Clinton, and Bush II administrations, we have seen unusually clear examples of three different visions of foreign policy in action - classical realism during Bush I, liberal internationalism under Clinton, and neoconservatism in Bush II.

The account of the differences between those visions - or ideologies, if you will - are striking in Krauthammer's essay. Still more striking, however, is his description of two different strands of neoconservatism emerging and now, he says, converging. The first, neoconservative idealism, is the progeny of the movement's original thinkers - idealists about democracy. It is given full voice in Bush's second inaugural speech and in his London speech - an idealistic commitment to backing democracy around the globe, and a break with the past of stability and accommodation to American friendly dictators. (I agree with Tod Lindberg of Policy Review that the second Bush inaugural speech is one of the clearest, finest statements of American ideals in foreign policy since the Second World War.)

Yet, as Krauthammer points out, the main architects today of Bush II's neoconservative foreign policy - its press for democratization - are people with no roots in neoconservatism - Cheney, Rice, Rumsfeld. They are all realists by temperment and decades of practice. September 11, however, changed the terms of realism, made it clear that realism, and its emphasis on stability and accommodation, would no longer protect America, and that the new realism would have to take idealism as its core. Moreover, the existing realist stability was precisely that which was producing the terrorist threat to America and elsewhere, and it was that which had to be challenged. Hence, from realism, idealism.

But the new neoconservative realists have not forgotten their realism, and it tempers their approach to Saudi Arabia, Pakistan, and Egypt (and, quite wrongly, in my view, Uzbekistan at this moment). In this, it takes into account both American interests in the short and medium term, in the war on terror, in energy security, and so on, on the one hand, and the lessons of Jean Kirkpatrick's "dicatators and double standards" from the Reagan years, on the other. This new neoconservative realism converges with neoconservative idealism in putting democracy front and center, but treating it as a goal to be achieved, not a revolutionary ideology.

***(I would add to this that neoconservatism is distinguished from liberal internationalism in no small part because of its emphasis on human freedom as expressed through democratically sovereign states, rather than the liberal internationalist ideology of top-down human rights, which as ideology is remarkably uninterested in democracy as such.)

(Update, July 1, 2005: Arnaud de Borchgrave, writing in the Washington Times, here, gives a conservative realist's aggressive thumbs down to the democracy ideology.)